In her Opinion and Order in Planned Parenthood of Indiana and Kentucky v. Commissioner, Indiana State Dept of Health, Judge Tanya Walton Pratt enjoined Indiana Code § 16-34-2-1.1(a)(5), requiring a woman to have an ultrasound at least eighteen hours prior to an abortion.

The judge found that Planned Parenthood of Indiana and Kentucky (PPINK) was likely to prevail on the merits under the undue burden standard rearticulated most recently in Whole Woman’s Health v. Hellerstedt (2016) regarding the substantive due process right to an abortion. The new statute combined two prior Indiana laws – an ultrasound requirement and a time sensitive informed consent requirement – into one new law that required a woman seeking an abortion to obtain an ultrasound at least 18 hours before her abortion. Indiana's principle rationale for the statute was fetal life, but the judge found that “the State has not provided any convincing evidence that requiring an ultrasound to occur eighteen hours prior to an abortion rather than on the day of an abortion makes it any more likely that a woman will choose not to have an abortion.” The judge was similarly unconvinced by the state's "alternative justification" of the "psychological importance" to the woman of viewing the ultrasound if she chose to do so. Even accepting the proposition that there could be psychological benefit, the evidence did not address the relevant question of the difference between "women having an ultrasound eighteen hours prior to the abortion as opposed to the day of the abortion."

The judge found that the burdens imposed by the statute, including increased travel distances and delays in obtaining abortion services, were not balanced by the state's unsubstantiated interest. Moreover, the judge found it relevant that the burdened women were mainly low-income women who would suffer financial burdens disproportionately, explaining that many women miss work because of these laws, and may have to reserve childcare for the days that they are away or traveling. Additionally, the judge weighed delays, explaining increases in double booked appointments, as well as increases in delays for women struggling to meet timing requirements for their abortions. The judge relied both on expert testimony as well as "specific examples" from nine woman relating to these burdens.

In sum, Judge Pratt concluded:

The new ultrasound law creates significant financial and other burdens on PPINK and its patients, particularly on low-income women in Indiana who face lengthy travel to one of PPINK’s now only six health centers that can offer an informed-consent appointment. These burdens are clearly undue when weighed against the almost complete lack of evidence that the law furthers the State’s asserted justifications of promoting fetal life and women’s mental health outcomes. The evidence presented by the State shows that viewing an ultrasound image has only a “very small” impact on an incrementally small number of women. And there is almost no evidence that this impact is increased if the ultrasound is viewed the day before the abortion rather than the day of the abortion. Moreover, the law does not require women to view the ultrasound imagine at all, and seventy-five percent of PPINK’s patients choose not to. For these women, the new ultrasound has no impact whatsoever. Given the lack of evidence that the new ultrasound law has the benefits asserted by the State, the law likely creates an undue burden on women’s constitutional rights.

The law was signed by now Vice President Pence when he was Governor of Indiana; it is uncertain whether the present state administration will pursue the same agenda.

Comments

This new opinion adopts the common view of Casey (that Casey rests on the Roe v. Wade analytic framework – e.g., there’s a privacy right that the due process clause can be used to vindicate that exists within a penumbra of other rights/interests):

The Supreme Court has long held that “[i]t is a constitutional liberty of the woman to have some freedom to terminate her pregnancy.” Planned Parenthood v. Casey, 505 U.S. 833, 846 (1992) (plurality opinion). This right is grounded in the right to privacy rooted in “the Fourteenth Amendment’s concept of personal liberty.” Roe v. Wade, 410 U.S. 113, 153 (1973).

Anyone want to challenge the following, which may be a far better way of looking at “substantive due process” jurisprudence over the past couple of decades? The Casey plurality adopted an analysis of the due process clause that differs fundamentally from the approach in Roe v. Wade. In Casey (among other recent opinions) the Court recognizes a substantive and fundamental liberty interest that exists independently of both the Roe v. Wade privacy right and the penumbra that 1973 opinion identified.

Posted by: Art Cowen | Apr 5, 2017 9:54:16 AM

Whole Woman's Health can be seen as "getting back to basics" on substantive due process with a judicial inquiry into the fit between the specific government interests asserted and the means chosen.